Sec. 33.08.05.09. Post-Election Audit — Ballot Tabulation Audit — Manual Audit

A. In General.

(1) A local board shall:

(a) At least 10 days before the manual audit starts, provide notice of the manual audit by:

(i) Sending the notice via mail to the chairman of the county central committee for each political party, each candidate for the contest to be audited who is not a candidate of a political party, and the State Administrator;

(ii) Posting the notice on its website; and

(iii) Posting the notice in a prominent and publicly accessible location at its office; and

(b) Allow, to the extent practicable, for public observation of each part of the manual audit process.

(2) If there is a discrepancy greater than 0.5 percent, the State Administrator:

(a) Shall require the local board to resolve or explain the discrepancy;

(b) Shall compare the manual audit results to the automated audit results;

(c) May expand the manual audit; and

(d) May take any other actions it considers necessary to resolve the discrepancy.

B. Primary Election Audit.

(1) The State Administrator shall require a local board to conduct a manual audit of voter-verifiable paper records if the automated audit shows a discrepancy in any precinct of greater than 0.5 percent of total votes cast in any contest and the discrepancy cannot be resolved or explained.

(2) The local board shall conduct the manual audit of the precinct in accordance with instructions issued by the State Administrator.

(3) If a local board is directed to conduct a manual audit, the local board of canvassers may not certify the results of the primary election until:

(a) The manual audit of the precinct with the unresolved or unexplained discrepancy is complete;

(b) The local board provides the State Administrator with a written report and findings of the manual audit; and

(c) The State Administrator concurs with the report and findings.

C. General Election Audit.

(1) At least 60 days before the election, the State Administrator shall instruct each local board as to the minimum number of voter-verifiable paper records from early voting and the absentee and provisional canvasses to audit manually.

(2) The State Board shall select the contest to be manually audited and randomly select the early voting center and precincts to be manually audited, as follows:

(a) Within 3 days before the start of early voting, the Chair of the State Board or designee shall randomly select 1 early voting center in each county from which a scanner with voted ballots will be manually audited;

(b) After 7 pm on the first day of early voting or at the end of the day when the minimum number of ballots to audit is met, a representative of the local board and the chief judges shall select the scanner with the ballots that will be audited;

(c) The State Board shall select the precincts and contest to be manually audited within 15 days after the election; and

(d) The State Board may exclude certain precincts based on the number of registered voters in that precinct in each county before randomly selecting precincts.

(3) The local boards shall conduct a manual audit of voter-verifiable paper records cast during the election, as follows:

(a) For voter-verifiable paper records cast during early voting, each local board shall manually audit a number equal to at least 1 percent of the total of early votes cast in the previous comparable election;

(b) For voter-verifiable paper records cast on election day, each local board shall manually audit at least one randomly chosen precinct in the county and any other precinct selected by the State Board;

(c) For voter-verifiable paper records canvassed during the absentee canvasses, each local board shall audit a number equal to at least 1 percent of the total of absentee ballots cast in the local board’s jurisdiction from the previous comparable general election; and

(d) For voter-verifiable paper records canvassed during the provisional canvasses, each local board shall audit a number equal to at least 1 percent of the total of provisional ballots cast in the local board’s jurisdiction from the previous comparable general election.

(4) A local board shall keep the ballots to be audited in secure but separate containers than all other ballots.

(5) A local board shall complete the manual audit within 120 days after a general election.

D. Conducting the Manual Audit - In General.

(1) The election director shall determine the appropriate audit method, as follows:

(a) If the contest to be audited is a “Vote for One” contest, the election director shall use the sort method as specified in §E of this regulation; and

(b) For all other contests, the election director shall use the tally method as specified in §F of this regulation.

(2) To prepare for the manual audit, the election director shall:

(a) Assemble all materials to conduct the audit;

(b) Create batches of a controllable number of ballots, for example, 25; and

(c) Appoint the teams to conduct the audit, assigning a team identifier to each team, for example, “Team A”, “Team B”.

(3) To conduct the manual audit, the election director shall:

(a) Issue the teams batches of ballots; and

(b) Record in the audit log:

(i) The team identifier;

(ii) The ballots issued to the team; and

(iii) Later, the ballots returned by the team.

(4) If ballots from more than one precinct are being audited, each team may be issued the ballots of only one precinct at a time.

(5) If team members do not agree on how a vote should be counted:

(a) The team shall refer the ballot to the election director; and

(b) The election director shall determine how the vote shall be counted.

E. Conducting the Manual Audit - Sort Method.

(1) One team member shall sort and the other team member shall watch to ensure accuracy.

(2) The ballots shall be sorted as follows:

(a) A batch for each candidate or ballot question response selected by the voter;

(b) A batch for ballots without a vote for a contest being tabulated;

(c) A batch for ballots for each officially filed write-in candidates; and

(d) A batch for all other write-in votes.

(3) Once all of the ballots have been sorted, each team member shall independently count the ballots in each batch.

(4) If the team members’ results are not identical, they shall retabulate the ballots until they obtain identical results.

(5) When the team members’ results are identical, they shall:

(a) Record the vote totals on the batch tally sheet;

(b) Sign the batch tally sheet; and

(c) Give the batch tally sheet and the ballots to the election director.

(6) The election director shall:

(a) Enter the vote totals on the consolidated tally sheets;

(b) Compare the results of the manual audit against the voting system results for that precinct; and

(c) If there are any unexplainable discrepancies, retabulate the ballots where the discrepancy exists.

F. Conducting the Manual Audit - Tally Method.

(1) Each team shall include one caller, two tally clerks, and one watcher.

(2) When practicable, the caller and watcher shall be of different party affiliations.

(3) For each ballot:

(a) The caller shall call the votes cast in the contest being recounted;

(b) The watcher shall ensure the accuracy of the calling; and

(c) The two tally clerks shall each independently record the votes as they are called.

(4) Periodically, the tally clerks shall compare their results to make sure they are identical.

(5) If the results are not identical, the team shall retabulate the ballots, beginning with the point of the last successful comparison check, until the two tally clerks obtain identical results.

(6) When all votes in the precinct have been tallied, the tally clerks shall:

(a) Record the vote totals on the batch tally sheet;

(b) Sign the batch tally sheet; and

(c) Give the batch tally sheet and the ballots to the election director.

(7) The election director shall:

(a) Enter the vote totals on the consolidated tally sheets;

(b) Compare the results of the manual audit against the voting system results for that precinct; and

(c) If there are any unexplainable discrepancies, retabulate the ballots where the discrepancy exists.

G. Post-Manual Audit Activities. After all ballots have been manually audited, the election director shall:

(1) Complete and sign the contest tally sheet;

(2) With 2 days of completing the audit, submit to the State Administrator the results of the manual audit and any suggestions to improve the voting system and voting process; and

(3) Present at the next meeting of the local board of elections the results of the manual audit.